Thomas A. Censke v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2695
THOMAS A. CENSKE,
Plaintiff-Appellant,
v.
U
NITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-2761 — Tanya Walton Pratt, Judge.
____________________
ARGUED DECEMBER 3, 2019 — DECIDED JANUARY 17, 2020
____________________
Before WOOD, Chief Judge, and HAMILTON and SCUDDER,
Circuit Judges.
SCUDDER, Circuit Judge. Prisoners face unique challenges
when submitting legal filings. Non-prisoners often have ac-
cess to electronic filing methods and, if not, can take their fil-
ings to the post office. But prisoners must use the prison’s
mail system, where security concerns often cause the system
to operate more slowly than standard mail. For legal filings,

2 No. 18-2695
timing can make all the difference, as it did for Thomas
Censke.
Censke placed his administrative complaint under the
Federal Tort Claims Act in the prison’s mailbox with nine
days to spare, but the government stamped it as received after
the statutory deadline had passed. The question is which date
counts—when Censke put it in the mail or when it arrived.
The district court held that Censke’s claim was not filed until
received, so it was untimely. We reverse and hold that the
prison-mailbox rule applies to a prisoner’s administrative
complaint under the Federal Tort Claims Act and so it is filed
upon being placed in the prison’s mail.
I
Thomas Censke sought to bring a claim under the FTCA
for injuries he says he suffered at the hands of prison guards
in December 2013. He alleged that correctional officers and
medical staff at the federal jail in Terre Haute, Indiana, phys-
ically abused him and then inadequately cared for his injuries,
which included a concussion, nerve damage, and a herniated
diaphragm. Before bringing his claim to court, Censke had to
comply with the FTCA’s administrative notice requirements.
The statute required Censke to give notice in writing to the
Bureau of Prisons within two years of the incident. See 28
U.S.C. § 2401(b). Notice could occur by sending a Bureau-pro-
vided form (shorthanded as SF-95) to the regional office in
which the injury happened. See 28 C.F.R. §§ 14.2(a), 543.31.
Bureau of Prisons regulations further provide that a com-
plaint sent to the wrong office or agency will be transferred to
the right one. See id. § 543.32(b). The Bureau considers claims
filed when first received by any of its offices. See D
EPARTMENT

No. 18-2695 3
OF JUSTICE, FEDERAL BUREAU OF PRISONS, Program Statement
1320.06: Federal Tort Claims Act (2003).
Censke struggled to present his administrative complaint.
He moved prisons six times in the two years following the al-
leged incident and lost access to his legal materials while in
transit. He also contends that prison staff ignored his requests
for an SF-95 form. When he eventually got the form, he was
being held at the federal facility in McCreary, Kentucky.
Censke then asked McCreary staff for the address of the Bu-
reau of Prisons’s North Central Regional Office, which over-
sees Terre Haute. Again, he says, the prison officials refused
to help him.
On December 7, 2015, nine days before the end of the two-
year limitations period, Censke placed his SF-95 form in
McCreary’s outgoing mail. (Censke swore in two affidavits
that he placed the form in outgoing legal mail on that date, to
be sent First Class. The government presented no contrary ev-
idence at summary judgment.) Because he still did not know
the regional office address, he sent it to the Bureau of Prisons’s
Central Office in Washington, D.C. The record does not reflect
when Censke’s claim reached that office, but the Bureau
stamped it as received at the North Central Regional Office on
February 16, 2016—over two months after Censke put it in the
mail. The Bureau denied the claim on the merits on April 22,
2016. It did not mention timeliness.
Censke then filed suit in the district court under the Fed-
eral Tort Claims Act. See 28 U.S.C. § 2401(b). The government
moved for summary judgment, arguing that Censke failed to
present the claim within two years of the alleged December
2013 incident. The government saw Censke’s claim as too late
because the Bureau did not receive it in its regional office until

4 No. 18-2695
after the deadline had passed. But Censke, then proceeding
pro se, was astute enough to argue (with admirable clarity)
that his claim was timely under the prison-mailbox rule or the
common-law mailbox rule (which provides a presumption of
receipt for a properly addressed mailing, Hagner v. United
States, 285 U.S. 427, 430 (1932)) or under equitable doctrines.
Censke also asserted that, at the very least, there was a mate-
rial dispute of fact as to when the Bureau’s Central Office first
received his SF-95 form.
The district court concluded that the mailbox rules did not
apply to render Censke’s claim timely. The court also rejected
Censke’s arguments for equitable tolling and delayed accrual
and entered summary judgment for the government.
On appeal we recruited counsel because Censke’s case
presents a substantive and unresolved legal issue: whether
the prison-mailbox rule applies to administrative filings un-
der the FTCA. We hold that it does.
II
In Houston v. Lack, the Supreme Court recognized the
prison-mailbox rule: an inmate’s notice of appeal is deemed
filed not when received by the court but rather when deliv-
ered to prison officials for mailing. 487 U.S. 266, 276 (1988).
The Court began by observing that 28 U.S.C. § 2107, the stat-
ute governing civil appeals, required that the notice of appeal
be filed within 30 days of the entry of judgment. See Houston,
487 U.S. at 272. While § 2107 did not define “filing,” the Fed-
eral Rules of Appellate Procedure did by making expressly
clear that parties intending to appeal must “fil[e] a notice of
appeal with the district clerk within the time allowed [by
law].” F
ED. R. APP. P. 3(a); see also FED. R. APP. P. (4)(a)(1)

No. 18-2695 5
(requiring the same). Despite this clear prerequisite, the Court
held that prisoners’ notices of appeal were filed upon being
placed in the prison mail. What guided the Court’s reasoning
was the reality that prisoners have “no control over delays be-
tween the prison authorities’ receipt of the notice and its fil-
ing, and their lack of freedom bars them from delivering the
notice to the court clerk personally.” Houston, 487 U.S. at 273–
74. That reality provided sufficient basis to depart from the
receipt-based rule applicable “in the ordinary civil case.” Id.
at 273.
In Houston’s wake, the prison-mailbox rule has been codi-
fied in the Federal Rules of Appellate Procedure and applied
to many legal filings in this court, the district court, and ad-
ministrative appeals. See, e.g., F
ED. R. APP. P. 25(a)(2) (codify-
ing Houston); Edwards v. United States, 266 F.3d 756, 758 (7th
Cir. 2001) (per curiam) (extending rule to Rule 59 motions);
Chavarria-Reyes v. Lynch, 845 F.3d 275, 277 (7th Cir. 2016) (ex-
tending rule to appellate papers filed in immigration cases).
Until now, though, we have not decided whether the rule ap-
plies to administrative complaints brought under the FTCA.
The government points to Fex v. Michigan, 507 U.S. 43
(1993), and urges us to decline Censke’s invitation to adopt
the prison-mailbox rule. Under the government’s reading, Fex
stands for the proposition that the prison-mailbox rule cannot
apply when a statute or regulation defines when a complaint
is considered filed. The government says that the Department
of Justice and Bureau of Prisons FTCA regulations provide
the definition of filing, so the prison-mailbox rule is inappli-
cable. See 28 C.F.R. § 14.2(a) (providing that a claim is pre-
sented when the federal agency receives the SF-95 form); id.

6 No. 18-2695
§ 543.32(a) (defining the filing date as the date on which DOJ
or the BOP first received the claim).
We cannot agree with such a broad reading of Fex. There
the Supreme Court held that the prison-mailbox rule did not
apply to the Interstate Agreement on Detainers. See Fex, 507
U.S. at 49–50. The Agreement allows a detainee to file a re-
quest for disposition on charges pending in another jurisdic-
tion. See 18 U.S.C. app. 2 § 2. Article III of the Agreement pro-
vides that a prisoner under a detainer “shall be brought to
trial within one hundred and eighty days after he shall have
caused to be delivered to the prosecuting officer ... written
notice” of the request. Id. Confronted with the question
whether the 180-day clock began when the detainee placed
the letter in the prison mail system or when the prosecutor
received it, the Court concluded that the Agreement was best
read as requiring the latter. See id. at 49–50. The time-clock
should begin when the state received the request, the Court
reasoned, so that postal mishaps such as lost mail did not pre-
clude the state from proceeding with a prosecution. See id.
Some of our sister circuits have adopted the government’s
reasoning and read Fex broadly. See, e.g., Longenette v. Krusing,
322 F.3d 758, 765 (3d Cir. 2003) (applying the prison-mailbox
rule to ownership claims in administrative forfeiture proceed-
ings because “neither the statute nor the regulations require
‘actual receipt’”); Smith v. Conner, 250 F.3d 277, 278–79 (5th
Cir. 2001) (declining to apply the prison-mailbox rule to no-
tice of appeal in an immigration case because Board of Immi-
gration Appeals regulations defined filing as date of receipt);
Nigro v. Sullivan, 40 F.3d 990, 995 (9th Cir. 1994) (declining to
apply the prison-mailbox rule to inmate-complaint appeals

No. 18-2695 7
because regulations required receipt within established time
limits).
The Second Circuit reasoned along the same lines but en-
dorsed a narrower understanding of Fex. When presented
with exactly the circumstances here, that court concluded that
the prison-mailbox rule does apply to administrative FTCA
claims. In Ta p i a-Ortiz v. Doe, the court acknowledged Fex but
nevertheless “[saw] no difference between the filing of a court
action and the filing of an administrative claim.” 171 F.3d 150,
152 (2d Cir. 1999). The court found dispositive that the
FTCA’s definition of filing as receipt came from only regula-
tions—not the statute itself. See id. at n.1 (explaining that Fex
precludes application of the prison-mailbox rule “when there
is a specific statutory regime to the contrary”) (emphasis
added).
The shortcoming of the government’s reading (and the
variations of it adopted by the other circuit courts) is that it
sets Fex in unnecessary tension with Houston. In Houston, the
Court applied the prison-mailbox rule after acknowledging
that the text of the Federal Rules of Appellate Procedure ex-
pressly required filing with the district court clerk. See 487
U.S. at 272–73. If Fex stands for the proposition that the
prison-mailbox rule can apply only when there is no language
providing a contrary definition of receipt, we would be left to
question whether Houston’s reasoning remains good law. But
the Court has explained that it does not overrule itself silently.
See Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989).
Put another way, we are hesitant to read Fex (which notably
does not mention Houston) to cast doubt on the general prin-
ciple that prisoners may, in the interests of justice, require dif-
ferent filing rules.

8 No. 18-2695
So, although we agree with the Second Circuit’s outcome,
we travel a different path of reasoning—in no small part be-
cause we see Fex in narrower terms. The starting point for the
Supreme Court in Fex was twofold: recognizing ambiguity in
the Agreement on Detainer’s language and from there under-
scoring the pragmatic consequences—or, in the Court’s
words, “the sense of the matter.” 507 U.S. at 49. In adopting
the state’s reading of the Agreement that the clock started to
run when the request was received—as opposed to the time
of the mailing—the Court explained that it did so to avoid
“the worst-case scenario” that “the prosecution will be pre-
cluded before the prosecutor even knows it has been re-
quested.” Id. at 50.
In light of Fex’s context, we do not read it to stand for any
broad principle that the prison-mailbox rule can apply only in
a regulatory void. This observation aligns with our precedent.
In Chavarria-Reyes v. Lynch, we held that the prison-mailbox
rule applied to notices of appeal filed in immigration matters.
845 F.3d 275, 277 (7th Cir. 2016) (citing Houston and explaining
that “[w]e can’t see any reason why this rule would not apply
to immigration”). In doing so, we parted ways with the Fifth
Circuit, which based on its reading of Fex, came out the other
way when answering the same question. See Smith, 250 F.3d
at 278–79 (declining to apply the prison-mailbox rule because
Board of Immigration Appeals regulations defined the filing
date as date of receipt).
Because administrative claims filed under the FTCA fall
within Houston’s framework and do not implicate the con-
cerns underpinning the Court’s reasoning in Fex, we hold that
the prison-mailbox rule applies here. This result is on all fours
with the rationale that guided the Court in Houston.

No. 18-2695 9
Recall, too, what happened here. Censke attempted re-
peatedly, over the course of several months, to acquire an SF-
95 form and the address for the appropriate regional office.
After much effort, he was able to send his claim more than a
week before the deadline expired. And yet the Bureau of Pris-
ons took the position, at least until partway through this ap-
peal, that it did not receive his claim until over two months
later. Censke’s experience demonstrates that pro se prisoners
face the same obstacles sending administrative forms as they
do court documents. For both filings, “the pro se prisoner has
no choice but to entrust the forwarding of his [filing] to prison
authorities whom he cannot control or supervise[.]” Houston,
487 U.S. at 271.
We would reach the same result even if we were to apply
Fex’s balance-of-the-harms approach. In Fex, the Court con-
cluded that the 180-day clock should start when the prosecu-
tor received the request—otherwise, disastrous consequences
would result if the request was lost in the mail. 507 U.S. at 49–
50. But here it is the prisoner who faces the stark consequence
if his complaint is never received. He could be barred from
bringing suit, no matter how meritorious his claim.
On the other hand, the potential harm to the federal gov-
ernment is not so great as to tilt the scales in its favor. The
FTCA’s administrative-presentment requirement has indis-
putable importance. It gives the agency “a fair opportunity to
investigate and possibly settle the claim before the parties
must assume the burden of costly and time-consuming litiga-
tion.” McNeil v. United States, 508 U.S. 106, 111–12 (1993). To
be sure, the application of the prison-mailbox rule could take
away some of the agency’s time to investigate before the com-
plainant is allowed to file suit. See 28 C.F.R. § 14.2(c). But that

10 No. 18-2695
result is less stark than the total preclusion of a state’s ability
to prosecute a defendant—the scenario the Supreme Court
confronted in Fex. Significantly, too, unlike in the context of
the Interstate Agreement on Detainers present in Fex, this case
involves no potential infringement by the federal government
upon state interests.
III
In light of our holding that the prison-mailbox rule applies
to Censke’s administrative claim under the Federal Tort
Claims Act, we need not proceed further. Censke’s claim was
timely filed. Accordingly, we REVERSE and REMAND for
further proceedings.